reasonableness Flashcards
Describe the overview of reasonableness as a ground of review under common law era
o Strict distinction between appeal and review was maintained
o Gross (or symptomatic) reasonableness
o Different tests for reasonableness applied in respect of legislative action, administrative action, and judicial decision and the so-called pure administrative action
Conceptual Understanding of Reasonableness
v There has been historical resistance to an inquiry into reasonableness of administrative action because of how deep reasonableness can go into merits of a decision (distinguishing review from appeal)
Describe concept of reasonableness
v Reasonableness is a variable standard of review that operates in degrees of scrutiny
v It’s context-specific, considering facts & circumstances of a particular case
what was the test that was applied for reasonableness under common law iro pure admin action?
Only action that was “grossly unreasonable” could be said to be unreasonable
(i.e. so unreasonable that something else could be inferred from it, like bad faith/ulterior motive)
what was the test that was applied for reasonableness under common law iro legislative action?
only action that was:
* manifestly unjust
* disclosed bad faith
* involved oppression and interference
* not contemplated by the legislature
– could be said to be unreasonable
Describe the overview of reasonableness as a ground of review under the interim and the final constitution
S 24(d) In. Con:
o S 24(d) of Interim Constitution:
“every person shall have the right to administrative action which is justifiable in relation to the reasons given for it where any of his or her rights is affected”
Case:
o NEW CLICKS: The Constitutional Court said that at the very least, this means that decisions of administrators must be rational.
S 33: o S 33 of the 1996 Constitution merely says administrative action must be reasonable, without imposing any conditions
Resultant Uncertainty: o For a while there was some uncertainty on whether the common law limitations on reasonableness survived (i.e. whether gross unreasonableness was still the test)
Describe the overview of reasonableness as a ground of review under PAJA [s 6(2)(f)(ii)]
{Rational Connection}
Admin Action is reviewable if no rational connection between the decision of the administrator and:
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator
Describe the overview of reasonableness as a ground of review under PAJA [s 6(2)(h)]
Admin Action is reviewable if:
> “the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the admin action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function”
2 elements of
reasonableness
> Rationality’ contemplated in S 6(2)(f)(ii) of PAJA
‘Reasonableness’ which is something more than mere rationality, contemplated in S 6(2)(h) of PAJA
Case law on rationality
CAREPHONE V MARCUS 1998 (LAC):
o RATIONALITY → ‘[there must be] a rational objective basis justifying the connection between material properly available to that administrator and the conclusion administrator eventually arrived at’
BATO STAR 2004 (CC) on s6(2)(h)
Legal interpretation
O’Regan J said the following about S 6(2)(h):
Literal Interpretation:
Justice O’Regan acknowledged that if we took the language of section 6(2)(h) literally, it might create an overly permissive standard.
Such a standard could lead to decisions rarely being found unreasonable.
However, she emphasized that this literal interpretation is not the proper constitutional meaning to attach to the subsection.
Bato star case O’Reagan on the consistency with the constitution
Consistent with the Constitution:
Section 33 of the Constitution requires administrative action to be “reasonable.”
Therefore, section 6(2)(h) should be understood in light of this constitutional requirement.
The goal is to strike a balance between respecting administrative decisions and ensuring they align with reasonableness.
Bato star case O’Reagan’s simple test
The Simple Test:
Justice O’Regan proposed a straightforward test:
An administrative decision will be reviewable if a reasonable decision-maker could not have reached the same decision.
In other words, the focus is on whether the decision is within the bounds of reasonableness.
what does reasonable mean?
o The courts have said that it is a variable standard.
o Now accepted that its meaning includes rationality but can mean more than rationality.
o It is a variable standard of review.
o It can allow for limited scrutiny by courts, and it can allow more expanded scrutiny by courts.
o It will always depend on the facts of a particular case, whether limited or greater scrutiny is warranted.
o This extended scrutiny has been said to mean the standard of PROPORTIONALITY.
Factors for determining a decision’s
reasonableness: (acc to Bato Star)
o “What will constitute a reasonable decision will depend on the circumstances of each case, much as what will constitute a fair procedure will depend on the circumstances of each case.
o Factors relevant to determining whether a decision is reasonable or not will include:
▪ the nature of the decision;
▪ the identity and expertise of the decision-maker;
▪ the range of factors relevant to the decision;
▪ the reasons given for the decision;
▪ the nature of the competing interests involved; and
▪ the impact of the decision on the lives and well-being of those affected.”
